On December 10, 1991, Milwaukee Deputy Sheriffs' Association filed a complaint
with the Wisconsin Employment Relations Commission alleging that Milwaukee County
(Sheriff's Department) had committed prohibited practices within the meaning of
Secs. 111.70(3)(a)1 and 5 of the Municipal Employment Relations Act. On May 25,
1993, the Commission appointed Lionel L. Crowley, a member of its staff, to act as
Examiner and to make and issue Findings of Fact, Conclusions of Law and Order as
provided in Sec. 111.07(5), Stats. Hearing on the complaint was held on July 15,
1993, in Milwaukee, Wisconsin. The parties filed briefs and reply briefs, the last
of which were received on October 4, 1993. The Examiner, having considered the
evidence and arguments of Counsel, makes and issues the following Findings of Fact,
Conclusions of Law and Order.

FINDINGS OF FACT

1. Milwaukee Deputy Sheriffs' Association, hereinafter referred to as the
Association, is a labor organization, and its principal offices are located at 821
West State Street, Milwaukee, Wisconsin 53233.

2. Milwaukee County, hereinafter referred to as the County, is a municipal
employer within the meaning of Sec. 111.70(1)(j), Stats., and its principal offices
are located at 901 North Ninth Street, Milwaukee, Wisconsin 53233.

3. The Association and the County have been, at all times material herein,
parties to a collective bargaining agreement covering all Deputy Sheriffs, Deputy
Sheriffs I, Deputy Sheriffs II and Deputy Sheriff Sergeants employed by the County.
The collective bargaining agreement contains a grievance procedure which culminates
in binding arbitration.

4. Charles Coughlin is a Deputy Sheriff I employed by the County and is
the Treasurer of the Association. In 1991, Coughlin was assigned to the jail and
served as a liaison with management personnel for union matters.

5. In 1991, the construction of a new jail caused the County to hire a new
class of recruit deputies to work in the jail, which caused concern among incumbent
deputies that their shifts might be changed because of the training of the new
recruits. Coughlin and the Administrative Lieutenant of the jail, Stacy Black, had
conversations addressing this issue. Coughlin and Black had different
understandings of the results of these conversations, with Coughlin believing a firm
agreement had been reached and so informed other employes. Black believed that they
had developed a proposal which he would recommend to the Director of the Detention
Bureau. The proposal was not approved by the Director, and Black did not inform
Coughlin of this. Coughlin learned from a bargaining unit member that the member
was being reassigned to accommodate recruit needs.

6. When Coughlin learned this on July 29, 1991, he phoned Black from the
jail and asked what had happened. Black responded that management had vetoed the
agreement. Coughlin asked when he was going to be informed about this and told
Black that his credibility with bargaining unit members had been destroyed because
he had been assured that the shift rotation problem had been worked out. Coughlin
was very angry and very loud and both Coughlin and Black described Coughlin's
language as "intemperate." Coughlin hung up before Black could respond.

7. Black called Coughlin's immediate supervisor, Sergeant Randy Tylke, and
told him to bring Coughlin to Black's office. Coughlin and Tylke arrived in short
order and Black ordered Coughlin to write a report of the phone incident. Coughlin
refused, saying that because the incident was related to his collective bargaining
responsibilities and not to his employment duties, it was inappropriate to write up
an incident report. Black reported the incident to the Office of Professional
Standards. Lieutenant Misko of that office ordered Coughlin to write the report and
answer a questionnaire. Coughlin refused on the same grounds as before and Misko
suggested Coughlin consult with the Association's labor counsel. Ultimately,
Coughlin wrote the report and completed the questionnaire.

8. On August 24, 1992, Coughlin was given discipline for his conduct on
July 29, 1991, and was given the choice of a three-day suspension or alternative
discipline. Coughlin elected the three-day suspension. The discipline was appealed
to arbitration before Arbitrator Jane B. Buffett. On May 7, 1993, Arbitrator
Buffett issued an award upholding the three-day suspension and denying the grievance
in its entirety.

9. Coughlin's conversation with Black on July 29, 1991, was protected
concerted activity as it involved terms and conditions of employment of the
employer-employe relationship and the suspension of Coughlin had a reasonable
tendency to interfere with Coughlin's protected concerted activity.

Based on the above and foregoing Findings of Fact, the Examiner makes and
issues the following

CONCLUSIONS OF LAW

1. The Association demonstrated by a clear and satisfactory preponderance
of the evidence that the County interfered with Coughlin in the exercise of rights
guaranteed by the Municipal Employment Relations Act, by its three-day suspension
of Coughlin, and therefore, the County violated Sec. 111.70(3)(a)1, Stats.

2. The Commission will not assert its jurisdiction to determine whether
the County has violated Sec. 111.70(3)(a)5, Stats.

Based on the above and foregoing Findings of Fact and Conclusions of Law, the
Examiner makes and issues the following

IT IS ORDERED that Milwaukee County, its officers and agents, shall
immediately:

1. Cease and desist from interfering with, restraining or
coercing
employes in the exercise of rights protected by Sec. 111.70(2), Stats.

2. Take the following affirmative action which the
Examiner finds will
effectuate the policies of the Municipal Employment Relations Act.

a. Make Coughlin whole for the wages and benefits lost as
a result of his
three-day suspension issued on August 24, 1992.

b. Expunge from Coughlin's personnel files any reference
to any
disciplinary action based on the July 29, 1991 telephone conversation
with Lieutenant Black.

c. Notify Sheriff's Department employes represented by the
Association by
conspicuously posting the attached Appendix A in places where notices
to employes are customarily posted, and take reasonable steps to assure
that said notice remains posted and unobstructed for a period of thirty
days.

d. Notify the Wisconsin Employment
Relations Commission within twenty days
of the date of this Order as to what steps the County has taken to
comply with the Order.

Dated at Madison, Wisconsin, this 26th day of October, 1993.

WISCONSIN EMPLOYMENT RELATIONS
COMMISSION

By Lionel L. Crowley /s/

Lionel L. Crowley, Examiner

This decision was placed in the mail on the date of issuance (i.e.
the
date appearing immediately above the Examiner's signature).

"APPENDIX A"

NOTICE TO ALL EMPLOYES

As ordered by the Wisconsin Employment Relations
Commission, and in order to
effectuate the policies of the Municipal Employment Relations Act, we notify our
employes that:

WE WILL NOT in any manner interfere with, restrain, or
coerce our employes in
the exercise of rights protected by Sec. 111.70(2), Stats.

Dated this ________ day of _________________, 1993.

MILWAUKEE COUNTY

By
_________________________________

THIS NOTICE MUST REMAIN POSTED FOR 30 DAYS FROM THE DATE
HEREOF, AND MUST NOT BE
ALTERED, DEFACED OR COVERED BY ANY OTHER MATERIAL.

MILWAUKEE COUNTY (SHERIFF'S DEPARTMENT)

MEMORANDUM ACCOMPANYING

FINDINGS OF FACT, CONCLUSIONS OF LAW AND
ORDER

In its complaint initiating these proceedings, the Association alleged that
the County violated Secs. 111.70(3)(a)1 and 5 by suspending the grievant based on
his conduct while acting as a Union representative. The County denied that it
committed any prohibited practices and sought dismissal of the complaint.

Association's Position

The Association contends that Coughlin was acting in his Union capacity when
he used intemperate language in his telephone conversation to Black and when he
refused to write a report about the matter. It submits that activities by Union
members with regard to labor relations matters are protected by state and federal
laws and speech is particularly protected. It argues that comments critical of
employer or employe representatives do not constitute a violation of the Municipal
Employment Relations Act (MERA) unless they include express or implied threats or
promises. It asserts that employes have a protected right to express their concerns
to employers on labor matters. The Association points out that the parties have not
limited Union activities between the Association and the County to off-duty hours
and that intemperate language during these activities has never before resulted in
discipline. It maintains that Coughlin's remarks to Black were protected and the
imposition of discipline constitutes interference and restraint of Coughlin's
exercise of his protected rights. The Association asks for an order that the County
cease and desist from disciplining bargaining unit representatives who engage in
protected activities and that Coughlin's discipline be purged from the records and
he be made whole.

County's Position

The County contends that the Association failed in its burden of providing
evidence sufficient to sustain the allegations contained in the complaint. The
County objects to these proceedings because the underlying grievance was decided in
arbitration and it is being denied the benefit of its bargain because the
Association is collaterally attacking the final and binding award of the arbitrator.
The County also asserts that its rights and those of Black are being violated under
Secs. 111.70(3)(b)2 and 4, Stats., by the continuation of this proceeding.

The County contends that a review of the evidence establishes that the Union
has not met its burden of proof. It submits that the testimony of Milwaukee Police
Association official, Bradley DeBraska is irrelevant and immaterial as he had no
firsthand knowledge of the instant case or of the County's operations. The County
dismissed the testimony of Ronald Bollhofer because it merely reflects a personal
management style of his own and he is biased because of his past reduction in rank
by the Sheriff. As to the testimony of Gerald Reider, it notes that nothing
relieves a Union representative from being held accountable to the rules of conduct
and that nothing in the agreement allows Union business on County time and an
employe must first obey a directive and then grieve it. The County alleges that
Coughlin's testimony was that he was not the Union representative, that a grievance
which supposedly justified his misconduct never existed and that his remarks to
Black were not to a management representative. The County argues that the
contractual dispute is moot as it has been arbitrated and the discipline is also
moot as the complaint was filed before discipline was imposed and the arbitration
proceeding is conclusive and cannot be collaterally attacked. The County requests
that the complaint be dismissed and the Association be ordered to cease and desist
further harassment of the County and other employes.

Association's Reply

The Association contends that the County's argument that the arbitration bars
the instant complaint is erroneous. It asserts the issue here is whether Coughlin's
discipline interfered with his and the Association's rights and constituted a
prohibited practice. It insists that Coughlin's activities were within the context
of advocating the Association's concerns on shift transfers and the Association need
only prove that the discipline had a reasonable tendency to interfere with his
rights under Sec. 111.70(2), Stats. Coughlin, according to the Association, had the
right to engage in "uninhibited" and "robust" speech while discussing labor
disputes, and disciplining him for this constitutes a prohibited practice. It
reiterated its request for relief.

County's Reply

The County submits that there was no stipulation that Coughlin was acting as
a Union representative during the course of his misconduct. It argues that imposing
discipline on Coughlin is not a prohibited practice and Union representatives are
not clothed with any immunity and should not be treated differently from other
employes. It insists that Union status does not shield an individual from
discipline. It maintains that the discipline and the circumstances surrounding it
were ruled on by the arbitrator and that decision is conclusive. It claims that
discipline is appropriate where the Union official acts irresponsibly and disregards
the contract and work rules encompassed by the contract. It alleges that Coughlin
is not cloaked with the right to be insubordinate or wantonly flaunt department
rules of conduct. It reiterates that Coughlin's expressions were not made to
management but to another non-management employe. It takes the position that the
arbitrator's determination in this matter is conclusive and cannot be collaterally
attacked. It submits that this case requires one result -- dismissal of the
complaint.

Discussion

The complaint alleges a violation of Sec. 111.70(3)(a)5, Stats. Section
111.70(3)(a)5, Stats., makes it a prohibited practice for a municipal employer:

5. To violate any collective bargaining agreement
previously agreed upon
by the parties with respect to wages, hours and conditions of employment affecting
municipal employes, including an agreement to arbitrate questions arising as to the
meaning or application of the terms of a collective bargaining agreement. . . .

Generally, the Commission will not exercise its jurisdiction to determine the
merits of breach of contract allegations in violation of Sec. 111.70(3)(a)5, Stats.,
where the parties' collective bargaining agreement provides for a grievance
procedure with final and binding arbitration. (2)
Here, the parties' collective
bargaining agreement provides for final and binding arbitration and an arbitrator
issued an award upholding the three-day suspension. (3) The County has correctly
argued that the arbitrator's award is final and binding and conclusive with respect
to the contractual violation. The parties must live with their bargain, and the
Commission's policy is to give full effect to the parties' agreed-upon procedures
for resolving disputes arising under their contract. Therefore, the undersigned
will not exercise the Commission's jurisdiction over the contractual dispute and the
allegation of a violation of Sec. 111.70(3)(a)5, Stats., has been dismissed.

The complaint also alleges a violation of Sec. 111.70(3)(a)1, Stats. Section
111.70(3)(a)1, Stats., provides that it is a prohibited practice for a municipal
employer "To interfere with, restrain or coerce municipal employes in the exercise
of their rights guaranteed in sub. (2)." Section 111.70(2), Stats., provides as
follows:

(2) RIGHTS OF MUNICIPAL
EMPLOYES. Municipal employes shall have the right
of self-organization, and the right to form, join or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage
in lawful, concerted activities for the purpose of collective bargaining or other
mutual aid or protection.

In order to prevail upon the allegation that an employer has violated Sec.
111.70(3)(a)1, Stats., the complaining party must demonstrate, by a clear and
satisfactory preponderance of the evidence, that an employer has engaged in conduct
which has a reasonable tendency to interfere with, restrain or coerce employes in
the exercise of their Sec. 111.70(2) rights. (4)
A violation may be found where the
employer did not intend to interfere and an employe did not feel coerced or was not,
in fact, deterred from exercising Sec. 111.70(2) rights. (5) A finding of anti-union
animus or motivation is not necessary to establish a violation of Sec.
111.70(3)(a)1. (6)

The County has forcefully argued that the arbitrator's decision is conclusive
on the Commission with respect to the alleged violation of Sec. 111.70(3)(a)1,
Stats. However, where discipline poses an arbitrable dispute under the collective
bargaining agreement but also is a prohibited practice within the Commission's
jurisdiction, the Commission's statutory authority to determine whether a prohibited
practice was committed is not foreclosed by an arbitrator's award. Where an
employer imposes discipline, it may not violate the parties' contract, but may very
well be a prohibited practice. The Commission has long held that discipline
motivated, in whole or in part, by anti-union animus constitutes a prohibited
practice. (7) Although an arbitrator could find
just cause for discipline, the
Commission could find that the discipline constituted a prohibited practice.
Therefore, the County's arguments that the arbitrator's decision is conclusive with
respect to the complaint is not persuasive.

The Association contends that Coughlin was engaged in lawful concerted
activities and the suspension interfered with these activities. The County claims
that Coughlin was not engaged in lawful concerted activities. A review of the
arbitrator's facts indicates that Coughlin and Black had discussions concerning
shift changes for incumbent deputies. This conduct is lawful concerted activity as
it falls within the rights enumerated under Sec. 111.70(2), Stats. The conduct of
Coughlin on July 29, 1991, was part of the on-going discussions with respect to
shift changes and was also concerted activities. The issue is whether the angry,
loud and "intemperate" language in the phone conversation is protected. The
Commission has held that statements which are made as a personal attack and not in
good faith are unprotected and an employe may be properly disciplined for such
conduct, even if it is part of protected concerted activities. (8)

In short, even if an employe is engaged in concerted activities, the employe's
rights are not absolutely immune from discipline. The employe's rights to engage
in concerted activities must be balanced against the employer's right to maintain
order and respect.

The County cannot discipline an employe for insubordination if the discipline
tends to interfere with the exercise of his protected activities. On the other
hand, the County can discipline the employe where his conduct is opprobrious. It
is generally recognized that in collective bargaining and in grievance meetings
frank discussions of the issues may result in heated exchanges and the use of coarse
language is not uncommon. However, the interests of collective bargaining are not
served by the external imposition of a rigid standard of proper and civilized
behavior. (9) Whether an employe's conduct
was so extreme as not to be protected
must be determined on a case-by-case basis after the facts and circumstances of the
case are examined. Calling a supervisor a "liar" during a grievance session was
protected; (10) however, racial or sexual
comments intended to demean and degrade a
supervisor are not protected. (11) Similarly,
an employe engaged in protected
activity of speaking with the employer's president on the plant floor in the
presence of a large number of co-workers, who insulted the president, directed
obscenities at him and refused to leave unless fired, was properly discharged. (12)

A review of the facts of the instant case reveals that Coughlin was angry and
very loud and used "intemperate" language. The County's assertion that Black was
not management is not persuasive. Black was a supervisor, albeit in a collective
bargaining unit of supervisors, and one of Coughlin's supervisors. It appears that
Black had authority to discuss the shift change problem and attempt to resolve it
and actually recommend a resolution to his superiors. Thus, Black was acting on
behalf of the County. A charge of insubordination necessarily involves a
supervisor. The Association had the burden of proving by clear and convincing
evidence that the suspension had a reasonable tendency to interfere with the right
to engage in concerted activities. The evidence establishes that the suspension was
based on Coughlin's comments to his supervisor which fall within the ambit of
concerted activity. In balancing the interests of protecting the right of employes
to engage in concerted activities against the County's interest in maintaining order
and respect, Coughlin's loud, angry and intemperate language is conduct which is not
so outrageous, offensive, defamatory or opprobrious as to be unprotected. The
record is unclear whether the discipline meted out to Coughlin was based, in part,
on his refusal to provide a written report about his conversation with Black and
answer a questionnaire. Certainly, the County could ask Coughlin for such a report
to determine whether his conduct "stepped over the line" and was opprobrious and
therefore not protected. Coughlin did submit the report on advice of counsel. The
report was not put in evidence and the evidence failed to establish that Coughlin
was disciplined because of his failure to write the report.

Coughlin was engaged in protected concerted activities in discussions over the
shift changes with Black and the conduct does not appear premeditated or flagrant,
so the discipline for his conduct had a reasonable tendency to interfere with
Coughlin's protected rights. The County, therefore, violated Sec. 111.70(3)(a)1,
Stats., by disciplining Coughlin, and the County is ordered to make him whole.

Dated at Madison, Wisconsin, this 26th day of October, 1993.

WISCONSIN EMPLOYMENT RELATIONS
COMMISSION

By Lionel L. Crowley /s/

Lionel L. Crowley, Examiner

1. Any party may file a petition for review with the
Commission by following the
procedures set forth in Sec. 111.07(5), Stats.

Section 111.07(5), Stats.

(5) The commission may authorize a commissioner or
examiner to make
findings and orders. Any party in interest who is dissatisfied with the
findings or order of a commissioner or examiner may file a written petition
with the commission as a body to review the findings or order. If no petition
is filed within 20 days from the date that a copy of the findings or order of
the commissioner or examiner was mailed to the last known address of the
parties in interest, such findings or order shall be considered the findings
or order of the commission as a body unless set aside, reversed or modified
by such commissioner or examiner within such time. If the findings or order
are set aside by the commissioner or examiner the status shall be the same as
prior to the findings or order set aside. If the findings or order are
reversed or modified by the commissioner or examiner the time for filing
petition with the commission shall run from the time that notice of such
reversal or modification is mailed to the last known address of the parties
in interest. Within 45 days after the filing of such petition with the
commission, the commission shall either affirm, reverse, set aside or modify
such findings or order, in whole or in part, or direct the taking of
additional testimony. Such action shall be based on a review of the evidence
submitted. If the commission is satisfied that a party in interest has been
prejudiced because of exceptional delay in the receipt of a copy of any
findings or order it may extend the time another 20 days for filing a
petition with the commission.